Appeal 2006-2786
Application 10/240,329
accurately measure the flow of milk (Answer 10). Thus, according the
Examiner, Brayer’s optical sensor would be added to, not substituted for,
Tamas’ color sensor. Accordingly, the apparatus resulting from the
Examiner’s proposed combination of Brayer’s transparency sensor with
Tamas’ apparatus for providing sterile milk free from pus and blood would
not be structured such that the “optical sensing means” (i.e., transparency
sensor) sends a signal to the “control means” to control the flow of the milk
into the “branch line” or the “main milk line” as required by claim 9. Rather,
in accord with Tamas’ disclosure, the colour sensor would control the flow
of the milk based on sensed color changes in the milk caused by blood or
pus. In another words, the Examiner’s proposed combination of Tamas and
Brayer would not be capable of performing the recited functions in claim 9
because the claimed apparatus and the apparatus resulting from the proposed
combination are structurally different. Schreiber, 128 F.3d at 1478, 44
USPQ2d at 1432.
For the above reasons, we reverse the Examiner’s § 103(a) rejection
of independent claims 1, 5, and 9, and dependent claims 3-4, 7-8, and 11-14
over Tamas in view of Brayer.
35 U.S.C. § 103(a) REJECTION OVER PETTERSON IN VIEW OF
TAMAS
Claim 21 recites that the “means for interrupting delivery of milk
comprises a three-way valve.”
Appellants have not separately argued the rejection of claim 21 which
ultimately depends on claim 19. Rather, Appellants rely on the same
arguments made previously regarding the rejection of claim 19 under
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